Luis Jurado v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LUIS JURADO, )

) No. 08-03-00334-CR

Appellant, )

) Appeal from the

v. )

) 243rd District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20030D00792)

)

O P I N I O N

Appellant Luis Jurado appeals his conviction for possession of a controlled substance, to wit: cocaine, having an aggregate weight, including adulterants or dilutants of less than one gram. The trial court held a hearing to consider Appellant=s pretrial written motion to suppress. On July 7, 2003, Appellant entered a guilty plea, waiving his rights except the right to appeal. Appellant was sentenced to 2 years= in the state jail, probated for 3 years and a fine of $500. The trial court has certified that this was a plea-bargain case in which the Appellant raised pretrial matters by written motion filed and ruled on before trial. By four issues, Appellant contends the trial court abused its discretion in overruling his motion to suppress evidence. We affirm.

At the suppression hearing, only one witness testified, Deputy Sheriff Rogelio Arreola of the El Paso County Sheriff=s Department, who was the arresting officer. On the evening of January 14, 2003, Arreola was on patrol in Fabens in the lower valley. He was in uniform and driving a marked patrol car. While patrolling the 800 block of Southeast Johnson at about 11:30 p.m., Arreola observed Appellant walking on the street in a very dark area heading towards the Franklin Canal. Arreola stated that Appellant Awas about to approach the canal when I saw him.@ When he saw him walking down the street, Arreola observed that Appellant was having a hard time walking because he was stumbling. Arreola stopped to do a welfare check on him.

Arreola approached Appellant and asked him where he was going. He then asked Appellant for identification and Appellant produced a Texas license. Arreola detected an odor of alcohol on Appellant=s person. Arreola stated that Appellant had red, bloodshot eyes, slurred speech, and could not tell him where he was going. At that point, Arreola determined Appellant was intoxicated. Arreola decided he would first ask Appellant if there was anywhere he could drop him off and if there was not, he was going to place him under arrest.[1] During his investigation into whether he would arrest Appellant for public intoxication or find somewhere to take him, Arreola recalled that Appellant told him conflicting stories. Arreola recalled that Appellant gave him an address and told him that he was going home, but he was walking in the opposite direction from his home.

Arreola had observed that Appellant had his left hand in his pocket when Arreola approached him. He noticed that Appellant gave him his license with his right hand and that his left hand remained in his pocket. Arreola stated, AI didn=t know what he had in his hand, in his pocket, so I asked him to pull his hand out of his pocket.@ Appellant initially complied with the officer=s request. Arreola then asked Appellant if he had any drugs or weapons on him and Appellant said he did not. Appellant then put his hand back into his left pocket where he originally had it. Arreola again told Appellant to remove his hand from his pocket and Appellant momentarily complied.

On his own, without Arreola requesting him to do so, Appellant began placing items from both his pockets on the hood of Arreola=s patrol car. After pulling out the items in his pockets, Appellant told Arreola, A[t]his is all I have,@ but Arreola could still see he had items in his pocket. He could not tell what the objects were, but it appeared to be a large bulge. Arreola did not think there was a gun in Appellant=s pocket, but he did not know if Appellant Ahad a knife or anything else.@ Because Appellant said he had nothing else, yet Arreola could still see something and thought he might have a weapon, Arreola decided to pat Appellant down out of caution for his safety to see if he had any weapons. Arreola felt an object in his pocket, but could not tell what it was and was not sure if it was a weapon.

When Appellant emptied his pockets for a second time, he pulled something out of his pocket with his left hand, but kept his hand closed. Arreola ordered Appellant to show him what he had in his hand, but Appellant refused and kept his hand clinched. Arreola repeated the order, but Appellant tried putting his hand in his back pocket. Arreola did not know if it was a weapon or not. He reached for and grabbed Appellant=s arm and pulled it back in front. Appellant finally opened his hand and that is when Arreola saw that he had a blue diamond-fold in his hand, which was found to contain cocaine. Originally, Arreola was going to place Appellant under arrest for public intoxication because he was intoxicated, but when he found the cocaine, Arreola arrested Appellant for possession of a controlled substance.

MOTION TO SUPPRESS

Standard of Review

A trial court=s ruling on a motion to suppress is generally reviewed for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). In reviewing a motion to suppress, we must give almost total deference to the trial court=s determination of historical facts and review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 88-9 (Tex.Crim.App. 1997). As the trial court made no explicit findings of historical facts in this case, the evidence must be reviewed in a light most favorable to the trial court=s ruling. Carmouche, 10 S.W.3d at 327-28. The trial court=s ruling will be upheld if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Ross, 32 S.W.3d at 855-56.

Initial Detention

Appellant argues that the sheriff deputy did not reasonably exercise his community caretaking function when he seized and searched him. Specifically, Appellant asserts that the weapons frisk that Arreola conducted cannot be justified as part of the community caretaking function of a police officer=s duties. We will first address whether the evidence concerning the initial stop supports the stop on the basis of the community caretaking function.

A police officer, as part of his or her duty to serve and protect, may reasonably seize an individual in exercise of his or her community caretaking function even though the officer does not have reasonable suspicion or probable cause to believe that an offense has been committed. Corbin v. State, 85 S.W.3d 272, 276-77 (Tex.Crim.App. 2002); Wright v. State, 7 S.W.3d 148, 151-52 (Tex.Crim.App. 1999). A police officer may not properly invoke his or her community caretaking function if he or she is primarily motivated by a non community caretaking purpose, such as law enforcement. Corbin, 85 S.W.3d at 277; Wright, 7 S.W.3d at 151. If it is determined that an officer is primarily motivated by his or her community caretaking function, it must then be determined whether the officer=s belief that the defendant needs help is reasonable. Corbin, 85 S.W.3d at 277; Wright, 7 S.W.3d at 151 52. The court may consider the following four non-exclusive factors in evaluating the reasonableness of the officer=s belief: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others. Corbin, 85 S.W.3d at 277; Wright, 7 S.W.3d at 152. The first factor is entitled to the greatest weight, but this factor alone is not always dispositive. Corbin, 85 S.W.3d at 277. The remaining factors help to give more definition to the first factor as the particular level of exhibited distress may be seen as more or less serious depending on the presence or absence of the remaining three factors. See id. In addition, the Corbin Court noted that the unique circumstance of a particular case may also swing the balance of these factors one way or the other. Id. at 277 n.6.

Here, Arreola testified that he observed Appellant walking on the street in a very dark area heading towards the Franklin Canal. According to Arreola, Appellant was about to approach the canal when he saw him. Appellant was stumbling and having a hard time walking. Based on these observations, Arreola decided to do a welfare check on Appellant. The trial court, as the exclusive judge of credibility and fact finder, could have concluded that Arreola was primarily motivated by community caretaking concerns. See Corbin, 85 S.W.3d at 277.

Next, we determine whether Arreola=s belief that Appellant needed help is reasonable by considering the factors discussed above. The first factor, the nature and level of the distress exhibited by Appellant, does not carry great weight. Arreola=s testimony does not shed much light on the distress exhibited by Appellant except to show that Appellant was stumbling and finding it difficult to walk down the street, which may be indicators that an individual is in distress. The second factor, the location of Appellant, weighs in favor of the stop. Arreola testified that Appellant was walking in a dark area of the street, stumbling, and heading towards a canal. In considering the third factor, we observe that Arreola=s testimony indicates that it was late in the evening, Appellant was alone, and Appellant had no access to assistance from another than that offered by Arreola. The third factor weighs in favor of the stop. Finally, the fourth factor also weighs in favor of the stop because according to Arreola=s testimony, Appellant was heading towards a canal in the dark. To some extent, if not assisted, Appellant would have posed a danger to himself. Weighing these factors, we conclude that Arreola was justified under his community caretaking function to detain Appellant to see if he needed help.

Weapons Search

Appellant also challenges the lawfulness of Arreola=s conduct under the theories that Arreola=s warrantless search of Appellant exceeded the scope of a protective Terry frisk, that Arreola lacked probable cause for an evidentiary search, and that Arreola lacked probable cause to arrest for public intoxication, therefore the search was not lawful as a search incident to arrest.

Under Terry v. Ohio, during an investigatory stop an officer may conduct a limited search for weapons of a suspect=s outer clothing when the officer has reason to believe that the suspect might be armed and dangerous, even in the absence of probable cause to arrest the individual for a crime. See Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968); Carmouche, 10 S.W.3d at 329. AThe purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . .@ Balentine v. State, 71 S.W.3d 763, 769 (Tex.Crim.App. 2002), quoting Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). The officer need not be certain that the suspect is armed; Athe issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.@ Terry, 392 U.S. at 27; 88 S. Ct. at 1883. Such a Aweapons frisk@ is justified only where the officer can point to specific and articulable facts which reasonably led him to conclude that the suspect might possess a weapon. Balentine, 71 S.W.3d at 769. The officer need not be absolutely certain that an individual is armed; the issue is whether a reasonably prudent person would justifiably believe that he or others were in danger. Id., citing O=Hara v. State, 27 S.W.3d 548, 551 (Tex.Crim.App. 2000). The timing of a protective search is not dispositive in evaluating its reasonableness. Id.

Here, Arreola testified that during the course of his investigation into whether to arrest Appellant for public intoxication, he observed that Appellant kept his left hand in his pocket. He asked Appellant to take his hand out of his pocket. Appellant complied with the officer=s request, but then put his hand back into his left pocket again. Arreola asked again for Appellant to remove his hand from his pocket, and Appellant momentarily complied with the request. On his own, Appellant began taking items from both his pockets and placing them on the hood of the patrol car. Appellant represented to Arreola that these removed items were all that he had in his pockets, but Arreola could see that Appellant had a large bulge in his pocket. Arreola thought Appellant might have a weapon because he could see that some object remained in Appellant=s pocket despite Appellant=s contradictory statement. Arreola testified that he conducted a pat down search at that point out of concern for his safety. Arreola felt an object, but was not sure if it was a weapon. Based on Appellant=s furtive and contradictory behavior, the circumstances surrounding the encounter, the officer=s safety concerns, and his belief that the large bulge could have been a weapon, Arreola had specific and articulable facts which led him to a reasonable belief that Appellant might be armed and dangerous. See Carmouche, 10 S.W.3d at 329.

Appellant argues that the frisk exceeded a reasonable scope when Arreola Aordered appellant to remove all the objects in appellant=s pocket.@ Viewing the evidence in the light most favorable to the trial court=s ruling, the record only indicates that Appellant emptied his pockets a second time. However, when Appellant pulled something out of his pocket and kept his hand closed, Arreola ordered Appellant to open his hand, which raises a question about the scope of the search. When Arreola repeated his order, Appellant put his arm behind his back and tried to put his hand into his back pocket. Arreola grabbed Appellant=s arm and pulled it back in front and Appellant then opened his hand. A reasonably prudent person under the circumstances would have still justifiably believed that he was in danger or that Appellant may have had a weapon when Appellant took evasive action to hide what he had taken out of his front pocket. Therefore, we conclude that the search was a valid Terry frisk that did not exceed the scope of that which was necessary to determined whether Appellant possessed a weapon. Since the trial court=s ruling can be upheld on the applicable theories of law discussed above, we overrule all of Appellant=s issues for review.

The trial court=s judgment is affirmed.

December 16, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Arreola explained that when an officer determines that a subject is intoxicated, the Department leaves it up to individual officers to decide whether to place the subject under arrest or to find somewhere where the subject could go or somebody that will be responsible for the subject rather than proceeding with the arrest. Arreola stated that it was standard procedure to first search the subject for safety purposes before letting the individual into the patrol vehicle.